The English law and U.S. Supreme Court’s decisions regarding authorization of copyright infringement seems to differ. This is evident from the decision of the U.S. Supreme Court in Metro-Goldwyn-Mayer Studios, Inc v Grokster Ltd and treatment of a similar case under English law. This paper will critically examine how this case could have been viewed under the English law. The paper will, first, review the decision of the U.S. Supreme Court and then compare these views with Judgments of a similar case under the English law.
The judgment of the U.S. Supreme Court in Metro-Goldwyn-Mayer Studios, Inc v Grokster Ltd
The case of Metro-Goldwyn-Mayer Studios, Inc v Grokster Ltd, involved two defendants (Grokster and Streamcast) (Stuart and Lapple, 2005). The two defendants offered free software products for application in peer-to-peer filesharing. Consumer who copied and shared music files were, apparently, accountable for primary copyright violation. Metro-Goldwyn-Mayer Studios filed a suit against the suppliers of technology that facilitated copying, for both vicarious liability and contributing to primary copyright violation, since such users were many (Stuart and Lapple, 2005).
The U.S. common law acknowledges contributory infringement whereby there exists a material contribution to an infringing action and the suspected secondary infringer is aware of the infringing activity when he contributes the material (Holzmann, 1995). However, there seemed to lack efficient control, by the distributor, on how the peer-to-peer file sharing software became used. Hence, the Ninth Circuit and District Court did not establish any liability, in contributory infringement, emerging from primary copyright violation by consumers who shared copyrighted music files (Castanias and Sokol, 2005).
Conversely, the Sony doctrine prohibits secondary liability grounded on implicating intent to cause infringement only from the devise or supply of a product that can be used for lawful purposes, even when the distributor is aware that such a product may be used for infringement purposes (Lee, 2007). There was no intent to cause a violation during software distribution, basing on Sony doctrine. The distributors did not have control over the utilization of the software, at the time of primary infringement by users, and could not be accused of contributing to infringement through offering materials for direct infringement.
The Supreme Court held that the Sony doctrine did not protect a party who had participated in the inducing of copyright infringement. Hence, the U.S. Supreme Court, during appeal, promulgated an inducement theory of infringement that implicated liability of a person who supplies a device with the aim of promoting its utilization to violate copyright. The Supreme Court took a wide view of inducement, in structuring the inducement theory, arguing that proof of advertising was the usual way of demonstrating unlawful intention, but there could be inducement devoid of any communication with consumers (Lee, 2007).
According to the Supreme Court, Grokster Ltd was implicated in various unlawful conducts. First, Grokster Ltd advertised its services deliberately, in order to attract illegal exchanges. Second, Grokster Ltd encouraged the use of its services in illegal music file sharing, through promotions. Third, Grokster Ltd did not use any filtering devices to weigh the fraction of its web site advertising revenue against the quantity of users.
English Law: The Judgment of the UK in CBS v Amstrad
On the other hand, under the English law, offering persons with the potential facilities to infringe cannot be considered as authorizing infringement, as such persons may opt to use such facilities for lawful copying. However, such facilities need to have appropriate warning notices regarding the risks of copying and, also, clear ways of disciplining persons who are found to violate these warnings must exist, in the case of employees. A case that resembles the jurisdiction of Metro-Goldwyn-Mayer Studios, Inc v Grokster Ltd, using the English Law is the case of CBS v Amstrad.
CBS v Amstrad was decided in 1988. In this case, CBS sued Amstrad for selling cassette tape recorders that were twin-head and of double speed (Spilsbury, 2000). The case proceeded to the House of Lords but did not succeed. CBS plaintiffs presented their claims on various basis including procuring infringement, authorizing and joint infringement. The House of Lords established that a person who procures an infringement of copyright is answerable, equally, with the violator. The Lords clarified that a defendant could obtain an infringement through incitement, persuasion or inducement.
Nevertheless, Amstrad did not commit infringement through advertising the attractions of its apparatus to any consumer who may opt to copy, illegitimately. According to the judgment by House of Lords, Amstrad did not procure illegal copying. Besides, the consumer did not make illegal copies out of persuasion or incitement from Amstrad (Sumpter, 2006). The purchaser made illegal copies for his individual use, and out of self will. Although Amstrad’s advertisement influenced buyers to buy their machines, they did not influence the decision of buyers to infringe copyrights. In fact, Amstrad’s advertisements had a footnote disclaimer warning that required buyers to be aware of the need to seek for permission ahead of copying some material, as Amstrad did not have authority to give that permission.
Thus, the English Law held that advertisement and sale of a machine which could be utilized, by the public, for both legal and illegal functions, including copyright infringement, could not be assumed to acquire copyright violations, through the use of such a machine by members of public for illegal purposes (Spilsbury, 2000). That is to say, inducement, influence or incitement to breach should be by a defendant to an entity infringer and should procure a certain infringement, identifiably, so as to make the defendant answerable as a common infringer.
Hence, procurement of copyright infringement subsists in the English Law as a ground of claim, although, apparently has a slender scope than the inducement theory propagated by the Supreme Court, in the case of Metro-Goldwyn-Mayer Studios, Inc vs Grokster Ltd. First, the English Law edition seems to necessitate communication involving the supplier and the end user, for instance, through advertising. This differs from the U.S Supreme Court’s stance that, although, proof of advertising is the usual way of demonstrating unlawful intention, there could be inducement devoid of any communication with consumers. Second, the English Law does not charge a Company for inducement through advertising, unless when there exists evidence that an individual has committed infringement due to such communication.
How the English Law would have handled the Grokster Case
Also, deriving from the English Law, there can be no authorization provided that there is no control at the instant of infringement, even when the nature of substances distributed appear to be certainly used for infringement purposes. Grokster Ltd lacked control over the utilization of the software, at the time of primary infringement by users, and could not be accused of contributing to infringement through offering materials for direct infringement.
Thus, if the case of Metro-Goldwyn-Mayer Studios, Inc v Grokster Ltd became judged by the House of Lords, using English Law, it would have failed due to several reasons. First, English Law could not consider Grokster having committed an infringement through promotions and advertising the attractions of its apparatus to consumers who may have opted to copy, illegitimately. The English Law does not consider Grokster Ltd to have procured illegal copying. Besides, consumers did not make illegal copies out of persuasion or incitement from Grokster Ltd. The verdict would have continued that consumers made illegal copies for their individual use, and out of self will, and; thus, Grokster Ltd played no role in influencing the decision of buyers to infringe copyrights.
In summary, the English Law holds that advertisement and sale of a machine which can be utilized, by the public, for both legal and illegal functions, including copyright infringement, cannot be assumed to acquire copyright violations, unless there is evidence of deliberate advertisement regarding unlawful use of service, between the supplier and the end user. However, the U.S Supreme Court’s holds that there could be an inducement, for unlawful use, devoid of any communication with consumers.
Castanias, G and Sokol, B. (2005). Grokster: the supreme court finally speaks on indirect copyright infringement. New York: Oxford University Press.
Holzmann, R. (1995). Infringement of the United States patent right: a guide for executives and attorneys. Westport: Quorum Books.
Lee, J.C. (2007). Authorizing copyright infringement and the control requirement: a look at P2P file-sharing and distribution of new technology in the U.K., Australia, Canada, and Singapore. Canadian Journal of Law and Technology, 83-98.
Spilsbury, S. (2000). Media law. London: Cavendish.
Stuart, C.C. and Lapple, M.C. (2005). MGM v. Grokster: multimillion-dollar questions
that the supreme court did not answer. Intellectual Property & Technology Law Journal, 17(8), 13-21.
.Sumpter, P. (2006). Intellectual property law: principles in practice. Auckland: CCH New Zealand.